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Competition

An essential element of any merger and acquisition transaction, and the conduct of business generally, is compliance with domestic and/ or international competition law. We act for national and international listed and unlisted corporate and institutional clients who are active in a diverse range of sectors, including banking, beverages, automotive, gas, oil, mining, healthcare, airlines and telecommunications.

Senior members of our Competition team have appreciable experience in related areas of business law practice, particularly mergers and acquisitions and litigation.

We have successfully represented clients in all local competition law forums, including the South African Supreme Court of Appeal.

Cliffe Dekker Hofmeyr remains at the forefront of developments, particularly in the face of a number of proposed amendments to legislation and policy which are expected to be implemented in 2009 or 2010.

Our Competition practice has extensive experience in all of the legal requirements associated with obtaining merger clearance and has successfully represented clients in many high-profile transactions. We have also been involved in a number of landmark cases dealing with restrictive practices (complaints regarding anti-competitive conduct).

Our comprehensive service offering encompasses every aspect of competition law practice including:

  • providing opinions in respect of merger related, prohibited practice or exemption questions
  • preparing merger notification documents and representation at merger hearings
  • opposing mergers
  • initiating and advising in respect of complaint proceedings before the Competition Authorities
  • defending clients in complaint proceedings
  • initiating and defending interim relief proceedings before the Competition Tribunal
  • applications for exemption
  • applications for corporate leniency
  • assisting with 'dawn raids' by the Competition Commission

Recent matters we have been involved in include:

Restrictive Practices

  • Representing Harmony Gold Mining Company in a long-standing excessive pricing complaint against ArcelorMittal South Africa in which the Tribunal ruled against ArcelorMittal. The decision is a first of its kind in South Africa and resulted in a fine of almost R700 million imposed on Mittal, 15 times the previous record for a fine imposed by the Tribunal. We continue to be involved as Mittal has lodged an appeal.
  • Representing Parmalat in regard to the Commission's referral of a complaint to the Tribunal in respect of an alleged milk cartel.
  • Acting for South African Airways in a complaint regarding allegations of abuse of dominance, including representation in the civil court for damages claims by competing airlines.
  • Acting for Pioneer Foods in the investigation into alleged bread price fixing on a national basis.
  • Assisting the Payments Association of South Africa (PASA) before the Commission's epic banking enquiry.
  • Successfully defending Independent Newspapers against allegations of abuse of dominance brought by a competitor in the Zulu newspaper publishing market.
  • Acting for MWEB, lodging complaint proceedings including an application for interim relief against Telkom for alleged abuse of dominance affecting the internet service provider market.

Mergers

  • Obtaining merger clearance in respect of Foodcorp's R1,2 billion acquisition of First Lifestyle as well as Foodcorp's joint venture with Premier Fishing (despite it reducing the number of competitors in the market from three to two)
  • Acting for Lonmin in hostile take-over of Lonmin by Xstrata, one of a few hostile merger cases in South Africa, involving a take-over of the third largest platinum producer, in an industry previously regarded by the authorities as uncompetitive. The transaction also raised complex procedural issues relating to separate notification
  • Acted for Business Connexion, which was the target of a proposed takeover by Telkom, in one of the most complex merger hearings yet to come before the Tribunal
  • Earlier this year we secured unconditional competition clearance in relation to a transaction which entailed an offer by a BEE consortium of investors, including Guma Investment Holdings, Old Mutual Life Assurance Company and the IDC to acquire the entire share capital of Tourvest, by way of a section 311 scheme of arrangement. The implementation of the scheme resulted in the delisting of Tourvest from the JSE Ltd
  • Successfully negotiated conditions for the approval of a merger between Afrimat Ltd and Malan's Quarries following a finding by the Competition Commission that the merger would be anti-competitive.
  • Acted for LionOre in its proposed acquisition by Xstrata, which triggered a hostile take-over by Norilsk
  • Successfully obtained clearance for the merger between African Bank and Ellerines
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